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The NJAC Challenge: SC Day 1

Published on Tue, Mar 10,2015 | 23:27, Updated at Tue, Mar 10 at 23:27Source : Moneycontrol.com 

By: Ashmit Kumar, CNBC TV18

CNBC TV18’s Ashmit Kumar is following the Supreme Court hearings in the NJAC case. This is an account of Day 1

The National Judicial Appointments Commission, facing legal scrutiny of the apex court, came under fire from legal luminaries Fali Nariman and Anil B Diwan. PILs in the SC are seeking a status quo on the NJAC, warning of irreparable damage if the law was brought into effect with a notification.

Representing the Supreme Court Advocates-on-record Association, Nariman tore into the NJAC Act, alleging that the independence of the judiciary was likely to be compromised. Nariman expanded the scope of the challenge, by impugning not just the act but also the process for enactment. He argued that the 99th Constitutional Amendment as well as the NJAC Act received Presidential assent on Dec 31, 2014. He reasoned that at the time of Parliament granting its nod, the constitution had not been suitably amended and that the 99th amendment can’t be applied retrospectively. Therefore, absence of the amendment, as per Nariman, renders the passing of the bill unconstitutional and ultra-vires.

Another contention that the petitioners raised was that the 6 member Commission, as envisioned under the Act, would allow any two members to veto a name under consideration (for appointment as senior judge). This provision, Nariman argued would allow for the non-judicial members to overwhelm and sideline the opinion of the Chief Justice and Senior SC judges on the Commission.  

The Act, in its current form, provides for a 6 member Commission, consisting of the CJI, two senior most SC Judges, Law Minister and two eminent persons. The eminent persons are to be selected by a panel consisting of the PM, Leader of the Opposition and the CJI.

Fali Nariman also raised the argument that the “independence of the judiciary” was a central feature of the Constitution. Such central features, as per Nariman, were beyond the scope of legislative challenge.

Echoing those sentiments, Anil B Diwan – representing the Bar Association of India, warned against “overriding or drowning the judicial voice”.

The government, represented by Attorney General Mukul Rohatgi, too, didn’t hold back in its defence of the NJAC against what Rohatgi called, “alarmist” PILs. Mukul Rohatgi pointed at the overwhelming majority of the Parliament voting in favor of the Bill. He also drew the court’s attention to nearly 20 state legislatures that have granted their nod.

He assured the court that the Parliament had absolute power and competence. He argued that the 50s, till well into the 70s, saw a more executive driven judicial appointment process. Yet, he argued that no one would question the integrity and objectivity of judges appointed then. He argued that the Emergency, contributed to this discourse, and a change in thinking was triggered, giving way to the Collegium. The time was now, Rohatgi argued, for balancing the two extremes. He further reasoned, that Collegium itself had flaws that had been widely debated and that there was near consensus on a more effective and balanced mechanism for appointment of judges.

He also assured the court that the presence of two eminent persons in the NJAC was being unfairly targeted to argue that the judicial voices could be overwhelmed.

He went on to argue that the mechanism would only strengthen the independence of the judiciary.

Rohatgi also added that central feature of the Constitution was independence of the judiciary, but not the Collegium system, which had become due for an overhaul. He further added that the presence of the CJI and 2 senior most SC judges would also provide for a mini-collegium within the Commission.

He concluded by “vigorously opposing” the grant of a stay, reasoning that it would be tantamount to stalling the will of the parliament from being imposed.

Interestingly, he also remarked, that a few media reports had suggested that the CJI had reservation about joining the Commission.

With the Act, currently, not in effect, the bench lead by Justice Dave questioned the government’s plans of moving forward with notification. The govt expressed no urgency. However, it refused to provide a time-frame being considered.

The SC will now hear the matter again tomorrow (March 11).

In August 2014 The Firm spoke to lawyers and judges for their view on the NJAC versus the Collegium system: http://thefirm.moneycontrol.com/story_page.php?autono=1162774

 
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